Intrusion upon seclusion
Overview Restatement (Second) of Torts §652B provides: A claimant must plead and prove four elements: # there was an unauthorized intrusion or prying into his seclusion; # the intrusion was highly offensive to or objectionable to a reasonable person; # the matter intruded upon was private; and # the intrusion caused anguish and suffering.Melvin v. Burling, 141 Ill.App.3d 786, 95 Ill. Dec. 919, 490 N.E.2d 1011, 1013-14 (1987) (full-text)(citations omitted). Intrusion upon seclusion best captures the common understanding of an invasion of privacy as an affront to individual dignity.Shulman v. Group W Productions, Inc., 18 Cal.4th 200, 74 Cal. Rptr. 2d 843, 955 P.2d 469, 489 (1998)(full-text). Unauthorized intrusion The first element is an unauthorized intrusion or prying into the plaintiff's seclusion. The tort deals with the collection of information about an individual, rather than the dissemination of that information.Rest. (Second) of Torts §652B, comm. a. The invasion itself may be a physical intrusion, such as, physically entering into a room, or the intrusion may occur by use of the defendant's senses.Id., comm. b ("The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photographs or information outlined.") For example, "eavesdropping via wiretapping has been conspicuously singled out on several occasions as precisely the kind of conduct that gives rise to an intrusion-upon-seclusion claim."Narducci v. Village of Bellwood, 444 F.Supp.2d 924, 938 (N.D. Ill. 2006)(full-text); Ross v. Midwest Comms., Inc., 870 F.2d 271, 273 (5th Cir. 1989)(full-text) (intrusion upon seclusion "exists only when there has been a physical invasion of a person's property or . . . eavesdropping on another's conversation with the aid of wiretaps, microphones, or spying"). “The place of the occurrence is relevant to a determination of the sufficiency of the evidence of intrusiveness, but it is not determinative of whether an intrusion into one's ‘solitude and seclusion’ has occurred.”Evans v. Detlefsen, 857 F.2d 330, 338 (6th Cir. 1988)(full-text). Comment c to the Restatement (Second) of Torts, Section 652B explains the point with the following examples: Stated succinctly, “the privacy which is invaded has to do with the type of interest involved and not the place where the invasion occurs.”''Id.'' (citing Galella v. Onassis, 487 F.2d 986, 994-95 (2d Cir. 1972))(full-text). This tort does not depend on publicity.Roe v. Cheyenne Mt. Conf. Resort, Inc., 124 F.3d 1221, 1236 (10th Cir. 1997)(full-text). "The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined."Id. Highly offensive to a reasonable person The second element a plaintiff must establish is that the intrusion was highly offensive to or objectionable to a reasonable person. The Restatement (Second) of Torts states that the intrusion must be "highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object."Rest. (Second) of Torts §652B, comm. d. The courts look at both how the information was obtained as well as what information was obtained.Tobin v. Michigan Civil Service Comm'n, 416 Mich. 661, 331 N.W.2d 184 (Mich. 1982)(full-text). Courts have found that surveillance is an intrusion highly offensive to a reasonable person.See Miller v. Brooks, 123 N.C. App. 20, 472 S.E.2d 350, 354 (1996)(full-text) (surveillance camera placed in the plaintiff's bedroom); Pemberton v. Bethlehem Steel Corp., 66 Md. App. 133, 502 A.2d 1101, 1118 (1986)(full-text) (a "detection device" placed on plaintiff's motel door); Hamberger v. Eastman, 106 N.H. 107, 206 A.2d 239, 242 (1965)(full-text) (concealed listening device in marital bedroom). Third party liability A defendant who negligently permits a third party to intrude into the plaintiff's affairs may be held liable for that intrusion.LeCrone v. Ohio Bell Tel. Co., 120 Ohio App. 129, 201 N.E.2d 533, 538 (1963)(full-text). The Restatement states that one is subject to liability if he permits a third person to act with his instrumentalities, knowing or having reason to know that the other is acting or will act tortiously.Restatement (Second) of Torts §877©. Reasonable expectation of privacy The law protects those areas of the plaintiff's life that the plaintiff can reasonably expect will not be intruded upon by one in the defendant's position.Pearson v. Dodd, 410 F.2d 701, 705 (D.C. Cir. 1969)(full-text). To prove this, the plaintiff must show a reasonable expectation of privacy.Medical Lab. Mgmt. Consultants v. American Broad. Co., 306 F.3d 806, 812 (9th Cir. 2002)(full-text). In determining whether a reasonable expectation of privacy exists, courts apply the two-prong test used in the Fourth Amendment constitutional context.Katz v. United States, 389 U.S. 347, 361 (1967) (full-text) (Harlan, J., concurring). First, an actual subjective expectation of privacy must exist.Id. Second, the expectation of privacy must be one that is objectively reasonable.Id. A subjective expectation of privacy may be demonstrated by any outward manifestation that the plaintiff expected the matter to be private.Medical Lab. Mgmt., 306 F.3d at 810. Further, the court must determine whether the plaintiff's expectation of privacy is "one that society is prepared to recognize as reasonable."Kemp v. Block, 607 F. Supp. 1262, 1264 (D. Nev. 1985)(full-text). Courts have generally recognized that the expectation of privacy in one's home is objectively reasonable.Katz, 389 U.S. at 361 (reasoning that a man's home is, for most purposes, a place where he expects privacy); see also Weeks v. United States, 232 U.S. 383, 344 (1914)(full-text). References Category:Privacy Category:Tort